Citation Nr: 0610061
Decision Date: 04/06/06 Archive Date: 04/13/06
DOCKET NO. 03-29 387 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
1. Entitlement to service connection for hypertension,
claimed as secondary to service-connected diabetes mellitus.
2. Entitlement to service connection for coronary artery
disease, claimed as secondary to service-connected diabetes
mellitus.
REPRESENTATION
Veteran represented by: The American Legion
ATTORNEY FOR THE BOARD
S. B. Mays, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1966 to
September 1970. This matter comes before the Board of
Veterans' Appeals (Board) on appeal from a February 2003
rating decision of the Montgomery, Alabama Regional Office
(RO) of the Department of Veterans Affairs (VA).
In an August 2004 decision, the Board denied service
connection claims for hypertension and coronary artery
disease, both claimed as secondary to service-connected
diabetes mellitus. The veteran filed a timely appeal of that
decision to the United States Court of Appeals for Veterans
Claims (Court). While the case was pending at the Court, the
VA Office of General Counsel and the veteran's representative
filed a Joint Motion for Remand, received in September 2005,
requesting that the Court vacate the Board's August 2004
denial, and remand the issues for further development. In
September 2005, the Court granted the motion and vacated
August 2004 decision. Thus, the service connection claims
have since been returned to the Board for proceedings
consistent with the Joint Motion for Remand.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify you if
further action is required on your part.
REMAND
The veteran asserts that he is entitled to service connection
for hypertension and coronary artery disease, both claimed as
secondary to service-connected diabetes mellitus. Pursuant
to the Court's September 2005 Order, additional development
is required.
Private medical records show a diagnosis of coronary artery
disease, status post myocardial infarction, in 1995.
However, a January 2003 VA examiner questioned the veteran's
history of coronary artery disease, noting that an August
2002 echocardiogram report showed no wall motion abnormality
to support the diagnosis of a prior myocardial infarction.
The examiner concluded that the veteran does not currently
have coronary artery disease.
During the January 2003 VA examination, the veteran indicated
that he had been treated by "Dr. Kim" in 1995 for an
episode of intense chest pain, and that "Dr. Kim" told him
that he had had a heart attack. Evidence from "Dr. Kim" is
not of record, and as pointed out in the Joint Motion for
Remand, it does not appear that efforts have been made to
secure these potentially relevant records. Accordingly, the
RO should request such records.
Also, with regard to the veteran's service connection claim
for hypertension, the Board notes that he was diagnosed with
both hypertension and service-connected diabetes in 1986.
While the January 2003 VA examiner opined that the veteran's
hypertension was not caused by his service-connected
diabetes, it is not clear whether the veteran's hypertension
is aggravated by his service-connected diabetes. See Allen
v. Brown, 7 Vet. App. 439 (1995). Where proximate causation
of the underlying non service-connected disability is not
shown, secondary service connection may still be established
for disability resulting from aggravation of a non service-
connected disability by a service-connected disability or
disabilities. Id.
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the veteran and
ask him to indicate where he received
cardiac treatment from Dr. Kim in 1995,
and to provide the approximate dates of
treatment. If Dr. Kim was a VA physician
at the time, the RO should request the
identified records from the appropriate
VA Medical Center. If Dr. Kim was a
private physician, the RO, after
obtaining the necessary authorization,
should request the identified records.
2. The claims folder should be returned
to the examiner who conducted a January
2003 "hypertension" examination.
a). The examiner is requested to provide
an opinion as to whether there is a 50
percent probability or greater that the
veteran's hypertension is aggravated by
the veteran's service-connected diabetes
mellitus. If aggravated, the examiner
should specify what measurable degree of
a permanent increase in severity is
related to the veteran's service-
connected diabetes.
b). If, after reviewing any newly
obtained evidence, the examiner concludes
that the veteran has a disability of the
cardiovascular system, other than
hypertension, the examiner should provide
an opinion as to whether there is a 50
percent probability or greater that any
diagnosed cardiac disability was caused
or aggravated by the veteran's service-
connected diabetes mellitus. If
aggravation occurred, the examiner should
specify what measurable degree of a
permanent increase in severity is related
to the veteran's service-connected
diabetes.
3. Thereafter, the RO should re-
adjudicate the veteran's service
connection claims for hypertension and
coronary artery disease, claimed as
secondary to service-connected diabetes
mellitus, taking into consideration any
newly obtained evidence. If any benefit
sought on appeal remains denied, the
veteran and his representative should be
provided a supplemental statement of the
case (SSOC). The SSOC must contain
notice of all relevant actions taken on
the claim for benefits, to include a
summary of the evidence and applicable
law and regulations considered pertinent
to the issue currently on appeal. An
appropriate period of time should be
allowed for response.
Thereafter, the case should be returned to the Board. The
Board intimates no opinion as to the ultimate outcome of this
case. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).